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Monday, February 16, 2004

Constitutional Amendment to Rein in Judicial Activism

A couple of days ago I pointed out that a constitutional amendment to rein in judicial activism may be a better way to go than a constitutional amendment to define marriage. Dave at Doc Rampage e-mailed me to let me know he had proposed the same thing, and scooped me by two days in the process. As this blog did not exist two days--or even two hours--before my post, this was not a hard thing for him to do, but I'll grant him that. My question for him, though, now that I've got his attention, is what form that amendment should take. My thinking, at least in this early phase, is to grant Congress limited power to overrule the court similar to its power to overrule a presidential veto. This has the danger of putting too much power in one branch and fails to provide defense against the tyranny of the majority, but at least the body making that decision is the one most representative of the people. Doc Rampage suggests what seems to be simply re-emphasizing the already existing limits on the court in the Constitution, but I'm not certain what that looks like as an amendment. I don't think I can get behind an amendment whose text is "This time we really mean it."

Update: Dave clarifies what he means. He prefers enshrining constitutional literalism in an amendment over a procedural change. I'll hold my thoughts on this for another post, and I'll just ignore his snarky response to my non-existence defense against his scooping me.